Doug Berman at Sentencing Law and Policy excerpts this new piece by David Cole (Georgetown University Law Center) in the New York Review of Books.discussing Race, Incarceration, and American Values by Glenn C. Loury, with Pamela S. Karlan, Tommie Shelby, and Loïc Wacquant; Let's Get Free: A Hip-Hop Theory of Justice by Paul Butler; and Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics by Anthony C. Thompson.

John Bronsteen (Loyola Chicago School of Law) has published Retribution's Role in the Indiana Law Journal. Here is the abstract:

Two main types of principle, retributive and consequentialist, have long been identified as the main approaches to justifying criminal punishment. Retributivists deem punishment justified by the wrongdoing of the offender, whereas utilitarians deem it justified by its good consequences such as deterring future crime. Over the past fifty years, each has spent decades as the dominant theory, and many hybrid theories have also been advanced. But few, if any, of the hybrid approaches have valued heavily both retributive and consequentialist considerations while locating the particular justificatory role each category plays. This Article points in that direction by reframing the central question of punishment justification as two questions: Why does the state have a right to punish, and why does it choose to exercise that right?The first question is answered most naturally by retributive considerations, whereas the second identifies the most natural space for utilitarian values. This framing device, it is hoped, resolves some of the disputes between retributivists and utilitarians while sharpening the focus on those that remain.

Some lawyers and businesses have claimed that, because of an increase in the level of antitrust fines imposed by the European Commission in recent years, these fines have become criminal in nature, and that the current institutional and procedural framework in which fines are imposed by the European Commission, with subsequent judicial review by the EU Courts, is no longer compatible with the European Convention on Human Rights. This paper critically examines those claims. The main point to be retained is that the case-law of the European Court of Human Rights distinguishes between, on the one hand, the hard core of criminal law, and, on the other hand, cases which are "criminal" within the autonomous meaning of the European Convention on Human Rights but which do not belong to the hard core of criminal law. Irrespective of any increase in their level, the antitrust fines imposed by the European Commission only belong to the second, broader category of criminal penalties, and the European Court of Human Rights has consistently held that it is compatible with the European Convention on Human Rights for such penalties to be imposed, in the first instance, by an administrative or non-judicial body such as the European Commission.

The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences — including being prosecuted for a crime himself — eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing America’s reliance on prisons, and suggests that these changes are in the nation’s collective self-interest. This Review contrasts Butler’s prudential arguments against mass incarceration with the moral arguments advanced by critics such as Glenn Loury, who emphasize the disproportionate numbers of poor people and racial minorities in our prison population. Building on Butler’s approach, the Review identifies additional aspects of our criminal justice system — including aggressive policing of minority youth and criminogenic prison conditions — whose harms extend beyond the direct victims (young people and prisoners) and imperil us all.

This lecture offers a broad review of current punishment theory debates and the alternative distributive principles for criminal liability and punishment that they suggest. This broader perspective attempts to explain in part the Model Penal Code's recent shift to reliance upon desert and accompanying limitation on the principles of deterrence, incapacitation, and rehabilitation.

Drawing extensively on new empirical data, this article presents pre-trial witness interviewing by Crown Prosecutors (PTWI) as an illuminating case-study in criminal procedure reform and its evaluation. Various rationales for PTWI are canvassed and compared against documented experience during its Pilot Evaluation. Proceeding from the deceptively simple instrumental objective of increasing convictions, the discussion broadens out into a more comprehensive evaluation of the intrinsic merits and limitations of PTWI. Having indicated the wider implications of this case-study for policies aimed at tackling ‘the justice gap’, the article concludes by advancing a general argument for greater sophistication in the planning, execution and ongoing evaluation of criminal procedure reform.

That Kent Scheidegger's post at Crime and Consequences, discussing the new article by Emily G. Owens, More Time, Less Crime? Estimating the Incapacitative Effect of Sentence Enhancements, 52 J. Law & Econ. 551 (2009). Kent's conclusion: "Letting habitual criminals out to save money is penny wise and pound foolish." Here's the abstract from Kent's post:

Under “knock and talk,” police go to people’s residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the “knock and talk.” When combined with such other exceptions to the warrant requirement as “plain view,” consent, and search incident to arrest, “knock and talk” is a powerful investigative technique.

That's the title of Doug Berman's post at Sentencing Law and Policy on this Washington Post editorial. I am somewhat less distressed by this piece than Doug seems--I do think there is an arguable case for a modest crack "premium," though far less than the historical ratio (but the subjectivist case for the gap is weaker). Still, I agree that equalizing the penalties is better than doing nothing.

The passage of the new federal hate-crime legislation, noted in a FindLaw article here, calls to mind the longstanding debates about such legislation. Much of it has focused on the constitutionality of such provisions. Hate crimes also raise sometimes overlooked questions of criminal law theory, and especially interesting ones for those who are subjectivists about punishment.

Much of the debate about hate crimes has centered on whether such crimes cause special social harms—perhaps an increased sense of isolation and fear among those within the protected group. These claims are subject to dispute, of course, but they are not clearly unreasonable.

In the new century, the CIA’s continued existence is not guaranteed. That is alarming because our country depends on its intelligence services for survival. CIA officers, while protecting us against real dangers, should help clear the smoke for all to see that the Justice Department’s investigation, whether or not it leads to criminal charges, is not part of a vast conspiracy against them. Understanding that the eagle in the CIA’s seal stands for both security and liberty, they should trust Leon Panetta to improve the Agency with more assertive roles from a new General Counsel, a new Inspector General, and better internal review boards. These internal checks are especially important for an agency that operates so much in the shadows. These checks have to be realistic, however, or else the case officers will no longer take their tough questions to the safe havens. Balance is vital.

One section lays out a low threshold to start investigating a person or group as a potential security threat. Another allows agents to use ethnicity or religion as a factor — as long as it is not the only one — when selecting subjects for scrutiny.

The criminal trial is conducted in two phases: The guilt-innocence phase, in which the issue of the defendant's culpability is addressed, and the sentencing phase, in which the punishment is determined. There is an underlying assumption of acoustic separation between the decision making processes in each of these phases, in the sense that the severity of the punishment is considered to be detached from the probative strength of the evidence underlying the conviction. The paper will challenge the acoustic separation ideal both descriptively and normatively, and will reconsider the derivative bipolar verdict regime: On the descriptive front, the paper will demonstrate that prevailing criminal law doctrines and practices effectively demolish the boundaries between the decision making processes in the two phases of the trial, creating a de facto correlation between certainty of guilt and severity of punishment.

Submissions are due by 5 p.m. Pacific Time Monday. (I hadn't realized that Oct. 31 was a Saturday when I first posted the deadline.) The original announcement follows:

After extensive negotiations with my dean, I am glad to announce that CrimProf is holding a “competition” for junior scholars with a paper in the areas of criminal law or criminal procedure. The “winner” will be transported, at our expense, to the University of San Diego at a mutually agreeable time during the spring semester to deliver the paper to our faculty. We will also webcast the audio and video of the presentation live for full-time academics (we’re pretty sure we can handle at least 100 live viewers), who will have the opportunity to ask questions during the presentation. For those who cannot participate live, we will place a podcast of the presentation on our website.

SAN FRANCISCO — These are heady times for advocates of legalized marijuana in California — and only in small part because of the newly relaxed approach of the federal government toward medical marijuana.

The institutionalist branch of “Law and Courts” studies how judges incorporate institutional constraints into their decisionmaking processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an “insulated base rule” in a way that disrupts the Justice's larger policy agenda. An “insulated base rule” is a Congressional policy decision that cannot, as a legal or practical matter, be modified by the Court. (Examples include Congressional decisions to appropriate funds, to enact certain types of mitigating legislation, or to orient legislation in particular constitutional clauses.) A Justice’s consideration of this third constraint (i.e., how a vote will affect a particular “insulated base rule”) is a process I call “stacking.” Leaving more sophisticated theoretical models and large-scale empirical studies for a later time, this paper illustrates adjudicative “stacking” through close study of the Supreme Court’s recent opinions in Virginia v. Moore.

Even when I've disagreed with him, I've always found Albert W. Alschuler (Northwestern University - School of Law) to be one of the most gifted and entertaining writers working in legal scholarship. He's even more fun when you agree with him, as I do with his recently posted work, Two Ways to Think About the Punishment of Corporations (American Criminal Law Review, 2009). He states his objections to corporate criminal liability with a withering clarity--the piece is worth reading just for his thought experiment about criminally prosecuting a barbershop quartet. Here is the abstract, which nicely summarizes the argument but comes nowhere close to capturing the engaging style of the piece:

This article compares the criminal punishment of corporations in the twenty-first century with two ancient legal practices - deodand (the punishment of animals and objects that have produced harm) and frankpledge (the punishment of all members of a group when one member of the group has avoided apprehension for a crime). It argues that corporate criminal punishment is a mistake but that viewing it as frankpledge is less ridiculous than viewing it as deodand. The article considers the implications of the choice between these concepts for standards of corporate guilt and for the sentencing of corporate offenders.